Opinion
05-10-1888
WAGONER v. WARNE.
W. H. Morrow, for defendant. J. G. Shipman & Son, for complainant.
Bill in chancery, filed by John O. Wagoner against Mark T. Warne. It appeared that the parties had done business under an agreement substantially as follows: That Wagoner was the owner of a mill suitable for grinding soap-stone; that Warne held the lease of a soap-stone quarry. These they agreed to combine; Warne to work the quarry, and deliver the soap-stone at the mill, and to receive there for the actual cost of production, and a royalty of 50 cents per ton, but the whole was not to exceed three dollars per ton. Wagoner was to grind the stone, and deliver it at the railroad depot, as required. The manufactured product was to belong to Wagoner alone. The business was to be done under the name of the "Lizzie Clay & Pulp Manufacturing Company," but Wagoner was to be the only one meant by such name. Warne was to have the exclusive agency for the sale of the manufactured product, and was to receive a certain sum on all sales made. Wagoner's agentwas to have full control of the financial part of the enterprise, and Warne's brother was appointed book-keeper. Each party was to keep correct books of account, which were to be open to the inspection of the other at all reasonable times. The other facts sufficiently appear in the opinion. Defendant made a motion to strike out a portion of the bill, to dissolve the injunction, and for the appointment of a receiver.
W. H. Morrow, for defendant. J. G. Shipman & Son, for complainant.
BIRD, V. C. The parties to this lease, as appears by the bill, had entered into an agreement in and by which Warne was to quarry and furnish certain materials, which the complainant was to manufacture into pulp. The manufactured article was to be sold by Warne. The compensation to each for his services was definitely fixed in the agreement. They did business under the name of the "Lizzie Clay & Pulp Manufacturing Company." The agreement having expired, the question has arisen as to which has the right to settle with the creditors of the concern, and to collect the amounts due for material sold, and, to this end, which of them has the control of the correspondence and of the books. Warne claiming the right to retain possession of all the books, and to keep them under his own control, and to take charge of all letters directed to the company, and to receive all remittances, and to account there for, at his will, to Wagoner, induced Wagoner to file his bill, and to ask thereby for an injunction restraining the said Warne from taking from the post-office any letters addressed to the said company, or any package or documents, and from opening the same, and from appropriating them to his own use, and from receiving any other articles belonging to and addressed to the said company, and that he may be restrained, also, from interfering with Wagoner in taking said letters from the post-office, and in taking possession of the said books of account. By the bill he also asks that the said Warne may account for the moneys which he has received by and through the letters which he has already taken from said post-office.
In the bill filed for these objects there are certain allegations which the defendant asks to have stricken there from as being irrelevant or impertinent. One allegation is that the complainant "is the owner in fee of the lands upon which the said Warne claims to have the lease; and your orator further shows that he himself has the exclusive right to quarry a short distance west of the quarry upon which the said Warne claims to have the lease." These, I think are totally independent allegations, and are in no way shown to have the slightest connection with any other part of the bill. It does not appear that the relief sought, in any degree whatsoever, depends upon the ownership of the title to either of these quarries. If the injunction is maintained, it cannot, by any possibility, depend upon either of these allegations. It would seem, therefore, proper in every sense, to remove them from the bill. If they are of any value, the defendant would be obliged to answer; and hence the controversy about a matter which cannot, in the judgment of the court, in any sense, affect the rights of the complainant under the bill as framed in all other particulars. I think the motion to strike these allegations from the bill should prevail, with costs.
Another allegation is that the defendant pretends to hold a lease for the said quarry, but which he does not hold at all in his own right, but only as agent, without the said agent specifying whose agent he is, and that in doing business he signs his name, "M. T. WARNE, Agent." While it may not be absolutely essential to describe with minuteness the true character or position of a party defendant, yet, if he is so described, I do not think it is competent for him to make objections thereto. Especially is this view proper in a case like the present. The spirit of the complainant's bill shows clearly that his object in asking the aid of this court is his fear of the ability of the defendant to respond to every proper allegation, and thereforeamong other things, he charges the manner in which he carries on his dealings with his neighbors. Upon this view of the case, if upon no other, the allegation should stand.
The motion to dissolve the injunction must be denied. It is quite plain to my mind, from the circumstances of this case as they appear in the bill, and as they are sufficiently admitted in the answer, that the complainant should be protected from all interference upon the part of the defendant; that the book-accounts which show the transactions of the complainant himself; and that the mail matter and other smaller packages which are directed by the customers of the concern to the company, should be under the immediate control of the complainant. Upon this branch of the case, I desire to avoid any intimation as to other rights between these parties; but I apprehend that I am not going too far, and am expressing no judgment as to the ultimate views which shall control, in retaining the injunction in full force as to the books of the concern, and as to all mail-matter and all packages whatsoever that may be shipped or sent to the company. Costs allowed. But, while this is so, the defendant, Warne, having, since the termination of the contract between the complainant and himself, engaged in business in the name of the same company, the injunction should be so far modified as to protect him in all communications intended for him in his own undertaking. To see to it that no injustice is done, I will appoint a person, indifferent between the parties, to receive all mail-matter and all other matter addressed to said company, with power to deliver all letters and other packages to the one whom in his judgment is entitled thereto.
There is an answer to this bill of complaint, and an answer by way of crossbill also, under the rule, in and by which the defendant prays for the appointment of a receiver. I can discover no grounds to justify the court in appointing a receiver. The original bill shows nothing to justify it, nor does the answer, with the affidavits thereto annexed. Without going further, it appears that the assets of the company consisted chiefly in a few outstanding accounts, not many thousand dollars in all, and other material used in the management of said business, of comparatively little value in all; and it not appearing anywhere but that the complainant is abundantly able to respond to the defendant for any moneys that may be due from the defendant to the complainant, there would not seem to be anything to justify the court in adding the expense of a receiver to the cost of settling a business of such very limited proportions, when nothing else is in dispute between the parties but the right to take control and to manage such business. Costs allowed.